(Link here: http://3.ly/LeeTilsonVsDrKevinReTortReform)
Two days ago, www.KevinMD.com asserted in its headline that:
Dr. Kevin: "The malpractice system doesn’t improve patient safety"
The blog piece begins discussing a case of "wrong hand" surgery cited in a recent journal article. The circumstances involved were disclosed promptly to the patient. Dr. Kevin applauds the physician for the prompt disclosure and describes it as "long overdue." *(See footnote below.)
Dr. Kevin refers without citation to articles showing that apologies lead to lower rates of being sued. He quotes a New England Journal of Medicine Article by Hilary Clinton and Barack Obama that most medical errors were due to system-wide causes and not bad doctors. Dr. Kevin next asserts that the malpractice system does a lousy job of improving patient safety or compensating injured patients. He claims that adversarial nature of the malpractice system prevents the apologies that would lead to progress.
The evidence cited does not support Dr. Kevin's conclusion.
Purpose of the tort system: Create incentives to avoid injuries
The tort system, by itself, will not prevent injuries. The tort system provides incentives to prevent injuries. Juries and judges are not in the business of making specific recommendations to courts as to how to prevent malpractice in the future. That is outside of the expertise of the judges and juries. If the healthcare industry and healthcare professionals choose to ignore the lessons of the malpractice system, whose fault is that?
What role do the courts play in preventing injuries? The courts create incentives to be careful and pay attention. Isn't that what courts should do? Can they do more? Should they do more?
When Drivers Ignore Red Lights, Do We Abolish Traffic Courts?
Consider traffic signals. If a driver ignores a red light and drives through an intersection, is that the light's fault? What changes should be made? Do we get rid of traffic signals? Do we abolish the rights of injured pedestrians to sue negligent drivers? Do we say that the cause of the injuries is the court system? Who would accept the argument that the court system causes the injuries by preventing negligent drivers from openly discussing why they ran the red lights?
More important, does that fact that a number of drivers choose to ignore traffic lights thereby injuring people mean that the court system is not working? Hardly.
Our courts are not the only institution in society. Our courts are a backstop. That backstop comes into play when all the other mechanisms for preventing injuries fail. The courts are a way to tell the other institutions that a problem exists. That message is being sent, loudly and clearly. Some refuse to hear the message and suggest executing the messenger.
Has anyone listened to the messages of the courts? What happens when the message is heard? We get the most effective methods of ensuring patient safety to date: closed claims studies.
Lessons of the Tort System: Closed Claims Studies
The real question is not whether the tort system solves the problem of medical malpractice, but whether it can be a part of a solution.
Are we better off with the tort system than we are without the tort system?
The Anesthesia Closed Claims Project resolved that issue decisively and positively. Article after article on recent patient safety efforts show a disappointing lack of progress with one exception: closed claims projects. The stunning success of the Anesthesia Closed Claims Project shows the path for patient safety. The starting point is an analysis of malpractice claims.
Following the advice of Dr. Kevin and other tort reformers would take away the starting point for the one and only method that seems to improve patient safety.
Links:
articles: http://3.ly/TilsonsSelectAnesthesiaClosedClaimsCases
and
free articles: http://3.ly/LeeTilsonAnesthClosedClaimsFree
What do you think?
Click on this link to access page for comments.
*Footnote:
While Dr. Kevin's article applauds the disclosure of a "wrong hand" surgery, does that really matter? (Note: some disagree with Dr. Kevin's description of that case.) Put yourself in the position of the patient that had undergone surgery on the wrong hand. Whether disclosed or not, this patient would have know that an error had occurred. Even a mere patient likely knows one hand from another, and which hand needed surgery. Was the disclosure the result of altruism or necessity? While no ad hominem against the surgeon is intended, this is one of the few cases where the patient would have known of the error even absent disclosure.
